Police v Cain

[2011] QMC 47

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Cain [2011] QMC 47

PARTIES:

POLICE

(prosecution)

v

CAMERON CAIN

(defendant)

FILE NO/S:

MAG98912/11(8)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross examine a witness in a committal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

4 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2011

MAGISTRATE:

Judge Butler SC, Chief Magistrate

ORDER:

The orders of the court will be:

1. The application to cross-examine the witness Smith is refused.
2. The application to cross-examine the witness Koppe is refused.
3. I direct pursuant to the provisions of s83A(5AA) of the Justices Act 1886 that the prosecution call Paul de Chermont to be made available for cross-examination on his written statement on the number and nature of his dealings with the applicant for the purpose of the purchase of drugs.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – “substantial reasons” – drug offences

Justices Act 1886 (Qld), s 83A(5AA), s 110B

COUNSEL:

A M Villanueva for prosecution

P J Saggers for defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for prosecution

Howden Saggers for defendant

1. This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that prosecution witnesses be required to attend to be cross-examined upon committal proceedings.

1. The applicant, Cameron Cain, is charged with one charge of trafficking in the dangerous drug cannabis, three charges supplying dangerous drugs, one of possessing dangerous drugs, one of possessing utensils and one charge of possessing property suspected of being used in connection with the commission of a drug offence.

1. The applicant seeks to cross-examine 3 prosecution witnesses.

Legal issues

1. The law for the conduct of committal proceedings in Queensland changed in 2010 upon the passage of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.

1. Prior to that the defence had a general right to cross-examine all prosecution witnesses at committal.

1. The amendments now forbid a magistrate to require a witness to appear and to submit to cross-examination unless a direction is made under s 83A(5AA). Such a direction must not be made unless the magistrate:

   “is satisfied there are substantial reasons why, in the interests of justice, the maker [of a written statement] should attend.”[1]

   [1] S 110B(1) Justice Act 1886 and s 14A(1) Acts Interpretation Act 1954

2. The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purposes of the legislation.

1. The legislative scheme seeks to limit the receipt of evidence in committal hearings to written statements and real exhibits unless a suitable basis is shown. Oral examination is not available on request, and may only be ordered where “substantial reasons” are demonstrated. Accordingly, the mere loss of an opportunity to cross-examine without more could not amount to a ‘substantial reason’.

1. When interpreting legislation extrinsic material may be considered in order to remove ambiguity or confirm an interpretation.[2]

   [2] S 14B Acts Interpretation Act 1954